KANSAS CITY SOUTHERN RY. CO. INC. v. Johnson, No. 1999-CA-00505-SCT.

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Before PITTMAN, C.J., SMITH and DIAZ, JJ.
• Citation: 798 So.2d 374
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY, INC. v. J.C. JOHNSON and Kerry Lynn Johnson.
• Docket Number: No. 1999-CA-00505-SCT.
• Decision Date: 08 February 2001

798 So.2d 374

KANSAS CITY SOUTHERN RAILWAY COMPANY, INC.
v.
J.C. JOHNSON and Kerry Lynn Johnson

No. 1999-CA-00505-SCT.

Supreme Court of Mississippi.

February 8, 2001.

Rehearing Denied May 10, 2001.

798 So.2d 376

Stuart G. Kruger, Jackson, for Appellant

Pat M. Barrett, Lexington, Isaac K. Byrd, Jr., Precious Tyrone Martin, Jackson, for Appellees.

Before PITTMAN, C.J., SMITH and DIAZ, JJ.

SMITH, Justice, for the Court:

¶ 1. On the Court's own motion, the prior opinions issued in this case are withdrawn, and this opinion is substituted therefor.

¶ 2. Kansas City Southern Railway appeals to this Court from a jury verdict rendered in Hinds County Circuit Court in favor of J.C. Johnson in the amount of $2.5 million and $1 million for Kerry Lynn Johnson. Judgment was entered based on the verdict. KCS subsequently moved for a judgment notwithstanding the verdict or a new trial. The circuit court denied this motion but ordered a remittitur of $500,000 on the damage award to Kerry Lynn Johnson. The remittitur was accepted. KCS promptly perfected this appeal.

¶ 3. This Court holds that the jury was properly instructed regarding damages for loss of enjoyment of life recoverable as a separate form of damages. We further hold that the trial court properly allowed the testimony of plaintiff's expert witness, Dr. Stan Smith. We therefore affirm the trial court.

STATEMENT OF THE FACTS

¶ 4. Viewed in the light most favorable to the Johnsons, the facts are as follows. On July 18, 1995, the vehicle driven by J.C. Johnson ("Johnson") was struck by KCS's eastbound 40-mile-per-hour freight train operated by its engineer, Cook. Before turning off to his right from U.S. Highway 80 some 68 feet north of the railroad crossing, Johnson had been traveling east on Highway 80, heading parallel with and in the same direction as the train, which, unknown to Johnson, was overtaking him from behind.

¶ 5. As Johnson headed up the steep, rough roadway slope of Johnson Quarters Road to the humpbacked summit of the crossing, unable to see oncoming vehicles on the other side of the tracks because of the severe grade, his view both up and down the tracks was seriously impaired by trees, bushes and other vegetation growing on KCS's right-of-way, which extended out 50 feet on either side of the track. There were no flashing lights or gates, or any other form of active protection, to warn motorists that a train was approaching this crossing at about 60 feet per second.

¶ 6. KCS's conductor seated on the left side of the locomotive cab testified that he saw Johnson as he turned off Highway 80 onto Johnson Quarters Road, when the train was about 300 feet away from impact. The engineer on the right side of the cab never saw Johnson's truck until somewhere between 100 to 150 feet. There was evidence that the train's horn was blown

798 So.2d 377

before the collision, but it was alleged that KCS's engineer had failed to blow his horn at a sufficient distance away from the crossing to give Johnson adequate warning that the 40 mph(60 feet per second) train was coming

¶ 7. It is also alleged that KCS had not maintained the crossing nor adopted any reasonable policy relative to vegetation control to provide a clear sight distance to the motoring public to detect approaching high speed trains. As a result of the railroad's negligence, in both crossing maintenance and train operation, Johnson contends he sustained severe and permanent injuries, consisting of a closed-head injury which has left him little more than a child. Johnson had a long history of employment and alleges he has suffered significant economic loss and medical expenses. Additionally, his wife suffered substantial loss of consortium.

¶ 8. After hearing the evidence, the jury found in favor of the Johnsons. KCS appeals to this Court and presented a number of issues for discussion.

STATEMENT OF THE ISSUES

I. WHETHER THE CIRCUIT COURT ERRED IN REFUSING TO TRANSFER VENUE TO THE CIRCUIT COURT OF RANKIN COUNTY.

II. WHETHER THE CIRCUIT COURT ERRED IN DENYING KCS'S MOTIONS FOR A DIRECTED VERDICT, PEREMPTORY INSTRUCTION, JUDGMENT NOTWITHSTANDING THE VERDICT, AND NEW TRIAL.

III. WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION IN ALLOWING EXPERT TESTIMONY REGARDING HEDONIC DAMAGES.

IV. WHETHER THE CIRCUIT COURT ERRED IN ALLOWING RECOVERY OF HEDONIC DAMAGES.

V. WHETHER THE CIRCUIT COURT ERRED IN GRANTING NUMEROUS JURY INSTRUCTIONS.

DISCUSSION OF LAW

I. WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION IN REFUSING TO TRANSFER VENUE.

¶ 9. The Johnsons filed the present action against KCS, Illinois Central, and Cook in the Circuit Court of Hinds County. The circuit court denied the defendants' motion to transfer venue to Rankin County. On appeal, KCS argues that the circuit court erred in denying the motion.

¶ 10. "An application for a change of venue is addressed to the discretion of the trial judge, and his ruling thereon will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances of the case." Beech v. Leaf River Forest Prods., Inc., 691 So.2d 446, 448 (Miss.1997) (quoting Mississippi State Highway Comm'n v. Rogers, 240 Miss. 529, 539-40, 128 So.2d 353, 358 (1961)). "The trial court must give the plaintiff the benefit of reasonable doubt with respect to the venue selection, and this Court must do the same on appeal." Pisharodi v. Golden Triangle Reg'l Med. Ctr., 735 So.2d 353, 354 (Miss.1999) (citing Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1156 (Miss.1992)).

¶ 11. The railroad venue statute, Miss.Code Ann. § 11-11-5 (Supp.2000), provides as follows:

798 So.2d 378

Actions against any railroad ... may be brought in the county where the cause of action accrued, in the county where the defendant has its principal place of business, or in the county in which the plaintiff resided at the time the cause of action accrued.

The cause of action in this case accrued in Rankin County, and the Johnsons resided in Rankin County. KCS argues that because its principal place of business is in Kansas City, Missouri, and not in Hinds County, the circuit court improperly denied its request to transfer venue to Rankin County. The Johnsons assert that KCS's principal place of business is in Hinds County, its registered agent for service of process, as well as Illinois Central's principal place of business and its registered agent for service of process. KCS, however, denies this despite the fact that one of its employees testified that the main office of the railroad was located in Jackson.

¶ 12. In Sawyer v. Illinois Cent. Gulf R.R., 606 So.2d 1069 (Miss.1992), this Court held that for purposes of the railroad venue statute, the principal place of business of Illinois Central was in Hinds County. In Salts v. Gulf Nat'l Life Ins. Co., 743 So.2d 371, 374 (Miss.1999), this Court explained:

In suits involving multiple defendants, where venue is good as to one defendant, it is good as to all defendants. This is true where the defendant upon whom venue is based is subsequently dismissed from the suit. In such situations, venue as to the remaining defendants continues despite the fact that venue would have been improper, if the original action had named them only.

KCS argues that this rule does not apply in the case at hand because the Johnsons' claim against Illinois Central was filed frivolously to establish venue in Hinds County. KCS's argument is not well-taken. After careful review, we find that venue was proper. The trial court had before it evidence that KCS's principal place of business was in Hinds County. We cannot say the trial court abused its discretion in denying the motion to transfer venue. Accordingly, this issue is without merit.

II. WHETHER THE CIRCUIT COURT ERRED IN DENYING KCS'S MOTIONS FOR A DIRECTED VERDICT, PEREMPTORY INSTRUCTION, JUDGMENT NOTWITHSTANDING THE VERDICT, AND NEW TRIAL.

¶ 13. This Court's standards of review for a denial of a judgment notwithstanding the verdict, a directed verdict, and a peremptory instruction are identical:

Under this standard, this Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required.

Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997). The trial judge properly denied the above motions, and the arguments that we should find otherwise are not persuasive. Evidence as to the hazardous conditions of the crossing as well as the adequacy of the sight distance were clearly questions for the jury.

798 So.2d 379

¶ 14. KCS also claims that it would...